IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL FOR ALBERTA) MOHAMMAD HASSAN MIAN. - and - HER MAJESTY THE QUEEN.

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1 B E T W E E N: File Number: IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL FOR ALBERTA) MOHAMMAD HASSAN MIAN - and - APPELLANT (Respondent) HER MAJESTY THE QUEEN - and - RESPONDENT (Appellant) ATTORNEY GENERAL OF ALBERTA INTERVENER FACTUM OF THE RESPONDENT (Pursuant to Rule 36(2) of the Rules of the Supreme Court of Canada) Public Prosecution Service of Canada 700 EPCOR Tower 10423, 101 Street Edmonton, AB T4H 0E7 (per: Ronald C. Reimer and David Schermbrucker) Tel: (780) Fax: (780) ron.reimer@ppsc-sppc.gc.ca Counsel for the Respondent Brian Saunders Director of Public Prosecutions 160 Elgin Street, 12th floor Ottawa, ON K1A 0H8 (per: François Lacasse) Tel: (613) Fax: (613) flacasse@ppsc-sppc.gc.ca Ottawa Agent for the Respondent

2 Daniel J. Song Sprake Song & Konye Criminal Trials and Appeals 355 Burrard Street, Suite 1720 Vancouver, BC V6C 2G8 Telephone: Facsimile: Counsel for the Appellant Henry S. Brown, Q.C. Gowling Lafleur Henderson LLP Barristers and Solicitors 160 Elgin Street, Suite 2600 Ottawa, Ontario K1P 1C3 Telephone: (613) Facsimile: (613) Ottawa Agent for the Appellant Jolaine Antonio Attorney General of Alberta 3rd Floor, Centrium Place 300, Avenue S.W. Calgary, AB T2P 0B2 Tel: (403) Fax: (403) Counsel for the Intervener, Attorney General of Alberta Brian A. Crane, Q.C. Gowling Lafleur Henderson LLP Elgin St P.O. Box 466, Station D Ottawa, ON K1P 1C3 Tel: (613) Fax: (613) brian.crane@gowlings.com Ottawa agent for the Intervener, Attorney General of Alberta

3 i TABLE OF CONTENTS Page Number PART I OVERVIEW AND STATEMENT OF FACTS 1 Overview 1 Facts of the Criminal Investigation Leading to the Arrest of the Accused 2 Facts of the Arrest and Search of the Accused 6 The Charter Voir Dire; Factual Controversy Regarding Officer Safety Concerns 7 The Trial Judge s Decision to Exclude the Evidence 10 The Crown s Appeal to the Alberta Court of Appeal 11 Supplemental Proceedings Initiated by the Accused 11 The Unanimous Decision of the Alberta Court of Appeal 13 PART II The Application for Leave to Appeal to The Supreme Court of Canada POSITION OF THE CROWN ON THE QUESTIONS IN ISSUE Questions on which Leave was Granted (A to D) 14 Additional Questions Raised by the Crown in Support of the Order for a New Trial (E to F) 15 PART III ARGUMENT 15 A. Do Appellate Courts have discretion to raise issues not raised by the Parties? The Crown s Proposed Test to Govern Appellate Courts Exercise of Discretion to Raise a Decisive Legal Error Justification of the Proposed Test 16 The Crown s Position is Consistent with this Court s Ruling in R v W.(G.) 19

4 ii How should the Court of Appeal proceed when raising an issue of Decisive Legal Error? B. Did the Court of Appeal Exercise its Discretion Fairly in the Case at Bar? C. Is it an Error of Law alone to Permit Cross-examination of a Witness on the Veracity of Another Witness or to Rely upon such Cross-examination in Assessing Credibility? D. Did these Errors Justify the Order for a New Trial? 23 CONSIDERATION OF FURTHER POINTS OF LAW RAISED BY THE CROWN E. Did the Trial Judge Err in Law in Concluding that the Police Infringed the Rights of the Accused under ss. 10(a) and 10(b) of the Charter? Exceptional Circumstances can Suspend Implementation of ss. 10(a) and (b) of the Charter. The Trial Judge Erred in Applying this Rule to this Case. F. If there was a Breach, did the Trial Judge Err in Law in Excluding the Evidence under s. 24(2) of the Charter? The Test (per R v Grant) 29 The Trial Judge Failed to Consider the Extenuating Circumstances when Determining the Seriousness of State Misconduct Charter Breaches that do not Lead to the Discovery of Evidence do not Engage the Underlying Purpose of the Seriousness of State Misconduct Factor of the Reformulated Test. The Impact on the Appellant s Protected Interest is a Minimal Consideration in this Case The Trial Judge erred in law in considering the Third Assessment Factor Balancing the Factors 36

5 iii PART IV COSTS 38 PART V NATURE OF THE ORDER SOUGHT 38 PART VI TABLE OF AUTHORITIES 39 PART VII TABLE OF STATUTES 43

6 1 PART I: OVERVIEW AND STATEMENT OF FACTS Overview 1. This case involves a decision, under s. 24(2) of the Canadian Charter of Rights and Freedoms, to exclude evidence of serious drug crimes detected in the midst of an ongoing wiretap investigation of persons reasonably believed to be drug-dealing gangsters involved in shootings and murder. The trial judge expressly found that police had reasonable grounds for believing that the appellant Mian ( the accused ) was a wholesale cocaine dealer in possession of half a kilogram of cocaine that he had just tried to sell in concert with one of the homicide suspects. Nevertheless, the trial judge excluded the key evidence because police delayed compliance with ss. 10(a) and 10(b) of the Charter for 22 minutes to disguise the arrest and search of the accused as a routine traffic stop in order to avoid compromising the ongoing gangviolence wiretap investigation. 2. The respondent ( the Crown ) renews its arguments, which the Court of Appeal chose not to address, that there must be a new trial because there was no legal basis for the s. 24(2) exclusion order. In this, the Crown advances two points of law. First, Charter ss. 10(a) and 10(b) were not violated because the exceptional circumstance of needing to protect the integrity of an ongoing covert wiretap investigation of gang-related homicides justified a brief delay in complying with ss. 10(a) and 10(b). Second, the trial judge committed serious legal errors in his s. 24(2) analysis and his ultimate decision to exclude the evidence is completely unreasonable. 3. This case comes to this Court by leave granted to the accused to challenge the decision below that a new trial is necessary based on an issue raised ex proprio motu by the Court of Appeal, but logically related to the Crown s s. 24(2) ground of appeal. That sub-issue focused on the trial judge s reliance upon impermissible cross-examination of the main investigator to support a finding that he had misled the court on a narrow matter of narrative what words had been said by a surveillance team member to the main investigator that prompted police to execute the arrest sooner rather than later. The court below raised the issue well in advance of the hearing, received full oral argument on this issue and also permitted the accused to file a lengthy post-hearing supplementary factum. The Court of Appeal subsequently allowed the Crown s appeal on that issue. LEGAL_1:

7 2 4. The decision below was both legally correct and wholly appropriate in light of the errorcorrecting function of provincial appellate courts. Given that the Crown had appealed the exclusion order as legally incorrect, given that the trial judge s improper reliance on impermissible cross-examination involved extrinsic legal error pivotal in that determination, and given that the accused had more than a full opportunity to be heard orally and in writing prior to decision, the Court of Appeal reasonably exercised its discretionary jurisdiction to identify a new sub-issue within the grounds of appeal advanced by the parties. In doing so, it fairly and impartially carried out its primary function of ensuring that trial verdicts are not the unacceptable consequence of decisive legal error. And it did so in a manner that provided the accused with a generous opportunity for consideration and response. Facts of the Criminal Investigation Leading to the Arrest of the Accused 5. Through much of 2008, Detective Phil Werth of the Edmonton Police Service was investigating violent gang activity that had resulted in several homicides and attempted homicides. The various gang members believed to be responsible for these violent crimes were mainly high-level cocaine traffickers. In late 2008 and early 2009, the police were intercepting the private communications of these suspects under a court authorized wiretap commencing 20 November That wiretap investigation, ongoing at the time of the events in this case, was attempting to solve several very violent crimes that appeared to be part of escalating gang violence, and to prevent further murderous violence. 1 The crimes under investigation included the following. The shooting death of Erin Tilley on 07 December 2007 at a west Edmonton intersection. She was riding in a car with a major drug dealer, Robin Chelmick, after they had left a nightclub at West Edmonton Mall. Chelmick was believed to be the intended target. A retaliatory attempted murder of the suspected shooter in the Tilley murder on 01 February 2008 at that shooter s residence, a crime believed to have been committed by Chelmick and two associates; A gunfight outside an Edmonton restaurant on 10 June 2008 in which Robin Chelmick was shot and nearly killed by rival gang members Applethwaite and Haq; 1 Reasons for Judgment ( Reasons ), Appellant s Record ( AR ) Vol I at paras 2-3; Detective Werth ( Werth ) Direct Examination, AR Vol II at 52/16-58/30.

8 3 The murder and attempted murder of two of Chelmick s wholesale customers and associates at a north Edmonton trailer park on 02 July They were in a drugbusiness dispute with Chelmick around the time of this attack. The murder of Haq, on 21 September 2008, believed to have been in retaliation for the June shooting of Chelmick. Haq was found shot dead in his own vehicle stopped at a traffic light in west Edmonton after having departed a nightclub at West Edmonton Mall. 6. The wiretap investigation revealed that the prime suspect, Robin Chelmick, was involved in trafficking cocaine at the pound and kilogram level on a regular basis to a variety of Edmonton gangsters. Detective Werth had monitored Chelmick s communications and movements and had become familiar with his covert methods of speaking on the phone and his techniques for conducting large cocaine transactions by doing rapid exchanges in relatively public locations, typically in parking lots with other persons in motor vehicles. 2 Werth explained that the investigation was principally aimed at trying to reduce violence, but as they reached the later stages of the wiretap investigation, he received permission from his superiors to attempt to identify some drug suppliers and make some seizures of cocaine On 05 and 06 January 2009, Detective Werth, a veteran drug and gang investigator who had witnessed more than a thousand suspected drug transactions, listened to six intercepted communications between Chelmick and a wholesale cocaine customer identified only as J. Based upon these intercepts, Detective Werth formed the opinion that Chelmick had agreed to act as the middle man between J, the buyer, and an unknown supplier in respect of a halfkilogram sale of cocaine. The transaction was slated to take place around 4:30 p.m., 06 January 2009, at Duke s Pub in north Edmonton Based upon the surveillance at Duke s Pub around 4:30 p.m. that day, Detective Werth concluded that Chelmick had in fact met with both the supplier and the customer near that location to complete the planned cocaine transaction. Based upon observations of Chelmick s movements and his interaction with the occupants of certain motor vehicles at the Duke s Pub parking lot, Detective Werth concluded that the cocaine had been supplied by the unidentified 2 Werth Direct Examination, AR Vol II at 53/06-72/30. 3 Werth Direct Examination, AR Vol II at 94/ Werth Direct Examination, AR Vol II at 75/31-87/21, AR Vol II at 91/11-18; Intercepts 1-6, Extracts of Key Evidence ( EKE ), Respondent s Record ( RR ) [Tab 2] at ; Reasons, AR Vol I at 3, para 4.

9 4 operator of a rented Chevrolet Malibu. Chelmick had been seen getting into that vehicle and meeting briefly with the operator before having a second meeting in his own vehicle with two unidentified males who were operating a Cadillac Escalade. After leaving Chelmick s vehicle, the two men immediately boarded their own car and departed the area. Another vehicle, a Pontiac G-6, had also been observed in the vicinity coming and going in apparent concert with the movements of the Cadillac Escalade At 5:13 p.m., about an hour after the apparent transaction at Duke s Pub, J telephoned Chelmick. J complained about the poor quality of the cocaine he had just received. Chelmick promised to call him back. His manner implied that he was going to take action in response to his customer s dissatisfaction At 5:35 p.m., Chelmick advised J that he would be meeting with the supplier on the south side of Edmonton for the purpose of grabbing [his] papes [getting J s money back]. He said that he had another contact who might have something pimp [a reference to higher quality cocaine] and if so, he would supply him with that product in exchange for the unacceptable cocaine At 5:55 p.m., the police surveillance team observed the same rented grey Malibu arrive at the Enterprise car rental office on 99 Street, near 38 Avenue, Edmonton. Chelmick was observed already waiting at that location and was then seen to meet briefly with the driver of the Malibu at the window of that vehicle After the meeting at the Enterprise car rental office, Chelmick visited other locations but his movements were concealed from police surveillance such that he had the opportunity to have acquired the replacement cocaine unobserved At 6:43 p.m., Chelmick was telephoned again by his customer J. This conversation revealed that they had arranged to meet to do the exchange at around 7:00 p.m. Chelmick 5 Reasons, AR Vol I at 3-4, paras 5-12; Werth Direct Examination, AR Vol II at 93/12-35, 95/26-100/22. 6 Reasons, AR Vol I at 4, para 13; Werth Direct Examination, AR Vol II at 100/37-102/12; Intercept 7, EKE, RR [Tab 2] at Reasons, AR Vol I at 4, para 15; Werth Direct Examination, AR Vol II at 106/33-108/36; Intercept 8, EKE, at RR [Tab 2] at Reasons, AR Vol I at 4, paras 16-17; Werth Direct Examination, AR Vol II at 109/ Reasons, AR Vol I at 4, paras 18-19; Werth Direct Examination, AR Vol II at 110/21-38.

10 5 confirmed that he would go to the location of their meeting (Duke s Pub) and switch it up right now. He asked J to be patient About 10 minutes later, Chelmick was observed apparently waiting at Duke s Pub, during which time police intercepted a further telephone conversation between him and J. Chelmick said that he was waiting for buddy [the supplier of the original bad cocaine] and that he expected him within a couple of minutes Around 7:00 p.m., Chelmick had apparent transactions with the occupants of both a Cadillac Escalade and a Pontiac G-6, vehicles similar to those which had been present at that location during the earlier meeting that day at Duke s Pub. At the conclusion of those transactions, those two vehicles departed the area as Chelmick was returning to his own Infiniti vehicle, where police surveillance observed him to be doing something inside his vehicle. Chelmick was then observed to walk towards the front doors of Duke s Pub At 7:17 p.m. the rented grey Chevrolet Malibu arrived at the Duke s Pub parking lot. Chelmick ran out of the establishment to his own vehicle and appeared to remove some object which he was seen holding under his left arm. He approached the passenger door of the Malibu, leaned inside, had a brief conversation with the driver of that vehicle and then closed the door of that vehicle. As he walked away from that vehicle, the unknown object was no longer under his arm. He then returned to Duke s Pub. The Malibu departed southbound along 127 Street Police followed the rented grey Malibu and stopped it several miles away from the location where the drug deal had taken place. 14 At this point in the investigation, Detective Werth was convinced that he had reasonable grounds to arrest the unidentified driver of the Malibu and to have him and his vehicle searched on the theory that he possessed the half kilogram of cocaine that he had supplied to Chelmick s customer but had been forced to take back because of its poor quality. (Werth s determination was found to be fully justified at trial and was not subsequently challenged on appeal.) However, the police chose not to conduct a 10 Reasons, AR Vol I at 4, para 20; Werth Direct Examination, AR Vol II at 111/1-34; Intercept 9, EKE, RR [Tab 2] at Reasons, AR Vol I at 5, para 22; Werth Direct Examination, AR Vol II at 113/9-19; Intercept 10, EKE, RR [Tab 2] at Reasons, AR Vol I at 5, paras 23-25; Werth Direct Examination, AR Vol II at 114/16-115/ Reasons, AR Vol I at 5, paras 26-27; Werth Direct Examination, AR Vol II at 115/35-116/ Reasons, AR Vol I at 5-6, paras 28, 31.

11 6 transparent drug arrest at that point in time. Instead, they conducted a ruse to make the arrest and searches appear to the accused as if they had arisen by happenstance during a routine traffic stop. (In this sense the word ruse is used to describe police action disguised at the scene of the arrest but openly disclosed later, as distinct from any attempt to mislead a court as to the actual motivation and justification for police action). Ultimately, an arrest and search were made; the vehicle stop identified the accused as the operator of the rented grey Malibu and discovered 539 grams of cocaine and $4050 in cash in his possession, resulting in the charges against the accused. The events that unfolded during the traffic-stop ruse were the focal point of the s. 24(2) exclusion order made at trial. Facts of the Arrest and Search of the Accused 18. Uniformed patrol officers McGill and Dalziel stopped the grey Malibu on the instructions of Detective Werth, who had advised them of his conviction that the driver of that vehicle could be lawfully arrested and searched on the theory that he was in possession of a large quantity of cocaine. 15 However, Werth explicitly instructed those officers not to arrest the accused for that offence but rather to conduct what appeared to be a traffic stop (a cool stop ) and attempt to develop their own grounds for conducting a search, so as to temporarily fool the accused about the true grounds for police action. If that did not pan out, Werth would instruct them to proceed with the drug arrest Detective Werth explained that he chose this ruse because of his concern that a transparent drug arrest shortly after a major drug transaction would jeopardize the ongoing wiretap investigation into homicides and gang violence. He testified repeatedly that he wanted the manner of arrest to appear natural so that the arrestee and his accomplices would not suspect a wider wiretap investigation was underway. He feared that if the main targets of investigation learned of a drug arrest of one of their confederates, they would attempt to reconstruct how it had come about, would then become suspicious about a wiretap investigation and would ditch their phones, with the result that the investigation s over. In explaining his concerns, he noted that after the accused s arrest the targets of the wiretap investigation were heard on the wire to debate precisely such suspicions. Apparently, however, their suspicions 15 Werth Direct Examination, AR Vol II at 116/18-122/6. 16 Werth Direct Examination, AR Vol II at 122/25-123/6.

12 7 were allayed by the disguised manner of arrest, they did not ditch their phones and the violence-focused wiretap investigation was in fact not compromised The arresting officers McGill and Dalziel dealt with the accused as if he were subject to a normal traffic stop, until the accused was observed to make a downward movement with his hands into the area down in front of the passenger seat. That movement triggered the police to immediately remove the accused from the Malibu, locate the half kilogram of cocaine, and arrest him for that. The entire sequence of events from vehicle stop to arrest and Charter advice occurred in a span of about 22 minutes. 18 The Charter Voir Dire; Factual Controversy Regarding Officer Safety Concerns 21. At trial, the accused moved to exclude the fruits of the cocaine and money seizure on the basis that it had been obtained in violation of ss. 8, 9, 10(a) and 10(b) of the Charter. 19 During the Charter voir dire, the grounds for arresting and searching the accused and the veracity of Detective Werth, the investigator who made the decision to arrest, were both subject to vigorous challenge. In an effort to discredit Werth, trial counsel for the accused zeroed in on a narrow factual controversy about what had transpired in the moments immediately prior to the removal of the accused from the rented vehicle. This controversy revolved around whether a member of the assisting surveillance team had told Werth that there were officer-safety concerns and that the uniformed constables should arrest the accused immediately. 22. Constable Drynan had earlier been called to testify as a member of the assisting surveillance team. He was responsible for making notes of observations broadcast by other surveillance team members. He was also conducting surveillance, broadcasting and recording his own observations. Testifying from the team notes, he said that he was positioned to observe the grey Malibu after it had been stopped by uniformed police officers. He was about 100 yards away using binoculars. 20 At 7:41 p.m., he recorded the following observation in the notes: The unknown male [the accused] seems to be reaching over the front passenger seat area and doing 17 Werth Direct Examination, AR Vol II at 122/25-123/36; AR Vol II at 104/1-105/3; Werth Cross-Examination, AR Vol II at 187/25-188/12; Reasons, AR Vol I at 7, paras Reasons, AR Vol I at 8-9, paras 48-51; Contable Dalziel ( Dalziel ) Direct Examination, RR [Tab 6] 00117/21-119/7; Constable McGill ( McGill ) Direct Examination, AR Vol II at 224/40-226/ Reasons, AR Vol I at 9, para Constable Drynan ( Drynan ), Direct Examination, AR Vol II at 33/26-34.

13 8 something with his hands, possibly between the seats, or even under them. 21 On crossexamination, he was asked whether he had formed any conclusions about what the male was doing that led [him] to communicate [to the investigators] that [he] had concerns and they should act on them. He replied, Nothing to the effect that anybody should act on it. No. He also agreed that he had broadcast exactly what was written in the surveillance notes Testifying in chief, Detective Werth said that a member of the surveillance team had either called him by cell phone or communicated by radio broadcast with words to the effect of, Phil, you had better get them up there and arrest this guy because he s reaching under the seats and they had officer safety concerns. Werth said that it was this report, which he recalled came from Constable Drynan, that prompted him to instruct Dalziel and McGill to immediately proceed with an arrest During cross-examination, Detective Werth was confronted with Drynan s contradictory account and he was then asked, So Drynan is he wrong, or is he lying? He replied, I think possibly he forgot. 24 Werth also pointed out that there were many other officers on the surveillance team. 25 He said he thought it was Drynan, but it may have been one of the other members. 26 Nevertheless, he insisted that it was reported to him, by phone to the best of his recollection, by a member of the surveillance team, that there were officer safety concerns and that he should act quickly, which he did by instructing Dalziel and McGill to effect the arrest. 27 Detective Werth also testified based on his experience that not everything that is observed in surveillance or said by surveillance team members, not every nuance, is recorded in surveillance notes. 28 In the course of responding to cross-examination Detective Werth refused to be swayed because Drynan had said differently. Werth testified that he did not care what Drynan said; he knew what had happened and he stood by his testimony Drynan, Direct Examination, AR Vol II at 33/ Drynan, Cross-Examination, AR Vol II at 47/30-48/ Werth, Direct Examination, AR Vol II at 125/ Werth, Cross-Examination, AR Vol II at 158/4-159/ Werth, Cross-Examination, AR Vol II at 157/ Werth, Cross-Examination, AR Vol II at 159/ / Werth, Cross-Examination, AR Vol II at 158/33-160/ Werth, Cross-Examination, AR Vol II at 153/19-29, 158/ Werth, Cross-Examination, AR Vol II at 158/33-160/11.

14 9 25. The testimony of the arresting officers Dalziel and McGill was entirely consistent with the timing of the arrest being precipitated by officer safety concerns arising from the accused being seen to make a movement downward in the passenger front seat area of his vehicle. 26. Dalziel s testimony described the mental state of the arresting officers. They were assisting the gang unit in dealing with a suspect believed to be in possession of a large quantity of cocaine in the vehicle. They were being extra vigilant because of concern about violence and guns. 30 Dalziel said that after he and McGill approached the unknown driver, McGill had communicated to him that McGill had recognized the accused from prior dealings, which put them on a higher alert. 31 They were aware that the accused was subject to a weapons prohibition order in the past. 32 When they returned to their vehicle in keeping with the traffic stop ruse, Dalziel was preoccupied with conducting computer checks when he received a call on his cell phone from Werth. 33 Dalziel described that communication as follows: Phil tells me that he is reaching under the seats, essentially get him out of the car. We don t know what s under those seats. 34 Dalziel said that as soon as he got off the phone, McGill told him that he had observed the accused reach under the seats. The two officers then moved quickly to remove the accused from the vehicle out of concern about what s underneath those seats of that vehicle Constable McGill s testimony also described the fact that the patrol officers were in a heightened state of alert. He recognized the accused from prior dealings and knew that the accused had been tied to violent activities or violence in the past. 36 McGill said that he communicated to Dalziel who they were dealing with, referring to the accused by his street name Huss. This was done in the way of sending a message partner-to-partner keep [your] head up. 37 McGill testified that after their initial dealings at the driver s door of the rental vehicle, they returned to the police vehicle. Shortly thereafter, from a distance of about 40 feet, he observed the accused make a significant movement reaching toward the passenger foot compartment. 38 Concurrently, Dalziel s phone rang and it was Werth calling. McGill said that he 30 Dalziel, Direct Examination, RR [Tab 6] at 00114/ Dalziel, Direct Examination, RR [Tab 6] at 00115/27-116/2, 116/ Dalziel, Direct Examination, RR [Tab 6] at 00116/ Dalziel, Direct Examination, RR [Tab 6] at 00117/ Dalziel, Direct Examination, RR [Tab 6] at 00117/ Dalziel, Direct Examination, RR [Tab 6] at 00117/ McGill, Direct Examination, AR Vol II at 217/32-220/ McGill, Direct Examination, AR Vol II at 220/ McGill, Direct Examination, AR Vol II at 221/29-222/18.

15 10 then barked at Dalziel that the accused was diving under the seat and that he was going to get him out. 39 McGill quickly approached the accused and ordered him out of the car, handcuffed and searched him, and found a bundle of cash. 40 Within a couple of minutes McGill put the accused in the back of the police car and questioned him about why he had gone under the seats; the accused did not answer. 41 In the meantime, Dalziel found the half-kilogram of cocaine in the Malibu. Within moments, Dalziel returned and arrested the accused for the drug offence and advised him of his right to counsel. 42 The Trial Judge s Decision to Exclude the Evidence 28. In his reasons for judgment the trial judge rejected the allegation that the arrest and search were unlawful. He unequivocally concluded that, following the second transaction at Duke s Bar, Detective Werth had reasonable and probable grounds to believe that the driver of the Malibu [the accused] was in possession of a significant quantity of cocaine Nevertheless, the s. 24(2) exclusion application was successful. The trial judge found that the rights of the accused under ss. 10(a) and 10(b) of the Charter had been violated by the 22- minute delay in advising him of the true reason for his arrest and of his right to counsel. This was the period of time from the initiation of the traffic stop until he was placed under arrest after the discovery of the half-kilogram of cocaine. 30. In applying s. 24(2), the trial judge held that these Charter violations were serious in nature because they had been done deliberately without any form of justification. The trial judge specifically stated that there was no evidence as to why the police could not have immediately arrested the accused for the drug offence and informed him of his right to counsel. 44 The trial judge further held that need for exclusion was aggravated by the fact that Detective Werth and one of the arresting officers, Cst. McGill, had at best greatly exaggerated or at worst simply fabricated officer safety concerns to account for their precise manner of proceeding at the arrest scene. Consequently, the trial judge concluded that the admission of the key evidence would 39 McGill, Direct Examination, AR Vol II at 222/20-223/4. 40 McGill, Direct Examination, AR Vol II at 223/6-224/ McGill, Direct Examination, AR Vol II at 224/40 to 225/6. 42 McGill, Direct Examination, AR Vol II at 224/15-227/6. 43 Reasons, AR Vol I at 10-14, paras Reasons, AR Vol I at 14-16, paras

16 11 bring the administration of justice into disrepute. He therefore excluded it, and thus the accused was acquitted. 45 The Crown s Appeal to the Alberta Court of Appeal 31. The Crown appealed the acquittal alleging two grounds of appeal. 46 It was urged that the trial judge had erred in law in finding that the arrest had violated ss. 10(a) and 10(b) of the Charter in that the circumstances justified some brief delay in compliance in order to safeguard the integrity of the ongoing wiretap investigation of gang-related homicides. 47 In addition, the Crown argued that the trial judge erred in law in the application of s. 24(2) and that there was no proper legal basis for the exclusion order After both parties had filed standard-length factums, 49 the appeal was scheduled for hearing on 06 September One month before the hearing, on 02 August 2012, the Court s case management officer wrote to counsel for both parties on the instructions of the panel assigned to the appeal. His letter communicated his instructions from the panel to call the attention of counsel to further authorities on two topics: what is a question of law on appeal from acquittal; and the limits of cross-examination and consequences of exceeding the limits. The letter provided a list of authorities addressing the two topics The appeal hearing proceeded as scheduled on 06 September At the hearing, counsel for each of the parties fully argued all grounds of appeal including the specific issues mentioned in the Court s letter. Counsel for the accused did not suggest during the hearing that he required any further opportunity to respond to any issues. 51 At the conclusion of the hearing, the Court reserved its decision. Supplemental Proceedings Initiated by the Accused 34. On 10 September 2012, counsel for the accused wrote to the Court requesting an opportunity to file further written submissions on the two issues raised by the panel during the 45 Reasons, AR Vol I at 16-20, paras Crown s Notice of Appeal dated 11 May 2011, AR Vol I, at Factum of the Crown Appellant filed in the ABCA, January 13, 2012, ( Crown s ABCA Factum ), RR [Tab 2] at paras Crown s ABCA Factum, RR [Tab 2] at , paras The Crown s s. 24(2) argument was very similar to the argument advanced in this Court as detailed at para infra. 49 In Alberta, the parties are each permitted to file a factum of 30 pages. 50 ABCA Case Manager s Letter to Counsel for the Parties dated 02 August 2012, AR at Crown s letter to the ABCA Case Manager dated 11 September 2012, AR at 73.

17 12 course of oral argument. He indicated that after first receiving notice of these issues, he was not able to fully appreciate them in the context of the facts of the case. The letter went on to describe his understanding of the two issues as follows: 1. Is it a question of law to ask whether the trial judge erred by concluding that there was no evidence of a real and present danger that the ongoing Chelmick [sic] investigation would have been compromised? 2. Did defence counsel exceed the scope of cross-examination by putting to Detective Werth the testimony of Constable Drynan, and if so does this error justify a new trial? The letter also requested that the Court impose filing deadlines At 1:50 p.m., on 11 September 2012, the Crown responded by faxed letter opposing the request on the basis that counsel for the accused had been given fair notice and had taken advantage of the opportunity to address those issues in oral argument. In addition, the letter advised the Court of the fact that prior to the hearing counsel for the accused had told counsel for the Crown that he was then considering a request to make further written submissions yet did not mention this either at the start of the hearing or at any time during oral argument. Crown counsel noted that this failure deprived the Court of Appeal of the option to adjourn the hearing and await further facta As it turns out the Court had already decided to permit the accused to file further written submissions. By letter faxed to the parties at 12:03 p.m. on 11 September 2012, which appears to have crossed paths in transit with the Crown s response mentioned above, the Court s case management officer advised that the panel would accept further written submissions on the issues articulated by counsel for the accused and imposed filing deadlines of 18 and 25 September 2012, respectively, for the accused and the Crown. 54 In accordance with those deadlines, counsel for the accused filed a 25-page supplemental factum addressing the two issues 55 and the Crown filed a 5-page response. 56 There is no evidence on the record below that the accused, respondent before the Court of Appeal, ever complained of the Court s requirement that he file his supplemental factum first and the Crown second. 52 Letter to the ABCA Case Manager dated 10 September 2012 by counsel for the accused, AR at Crown s letter to the ABCA Case Manager dated 11 September 2012, AR at ABCA Case Manager s Letter to the Parties dated 11 September 2012, AR at Supplemental Factum filed by the accused dated 18 September 2012, RR [Tab 4] at Crown s Reply to the Supplemental Factum, dated 25 September 2012, RR [Tab 5] at

18 13 The Unanimous Decision of the Alberta Court of Appeal 37. On 18 October 2012, the Court of Appeal released its decision allowing the Crown s appeal. In a unanimous judgment, the Court concluded that the appeal could be disposed of on the basis that the trial judge erred in law by relying upon the impermissible cross-examination of Detective Werth The Court concluded that the trial judge s credibility finding against Detective Werth had been based upon the impermissible cross-examination about the veracity of Drynan s conflicting account. In turn, the rejection of Werth s evidence was crucial in respect of two of three relevant assessment factors under s. 24(2) of the Charter. It influenced the trial judge s failure to consider that any breach was mitigated by the plausible explanation for delaying compliance with ss. 10(a) and 10(b) of the Charter (the need to protect the integrity of an ongoing wiretap investigation). It also caused the trial judge to conclude that society s interest in adjudication on the merits (the third assessment factor) favoured exclusion. In short, the Court concluded that the negative credibility finding that placed heavy reliance on the impermissible cross-examination played a pivotal role in his eventual decision to exclude the evidence In allowing the appeal and ordering a new trial, the appeal court did not address the merits of the other points of law originally advanced by the Crown. In this connection, the Court stated that it was not appropriate therefore to engage in an analysis of the other grounds of appeal as their application may be affected by the fact findings made in a new trial. 59 The Application for Leave to Appeal to the Supreme Court of Canada 40. The accused applied for leave to appeal to this Court on the grounds that: 1. Appellate courts do not have discretion to decide appeals on issues not raised by parties to the appeal. If such discretion exists, it should be exercised rarely, without compromising procedural fairness. The Court of Appeal of Alberta should not have raised an issue on its own motion, and in so doing, rendered the proceedings unfair and raised a reasonable apprehension of bias. 2. The trial judge did not commit an error of law by failing to intervene when trial counsel [for the accused] asked Detective Werth whether Constable Drynan was lying. No Canadian appellate court has ordered a new trial on the basis that defence counsel 57 Reasons, AR at 36, para Reasons, AR at 40, para Reasons, AR at 41, para 41.

19 14 asked a Crown witness to comment on the truthfulness of another witness s testimony. Even if the trial judge erred in permitting this question, the error did not have a material bearing on the trial judge s s. 24(2) decision, having regard to the deferential standard of review Following an oral hearing on the application for leave on 13 May 2013 before the Chief Justice and Abella and Cromwell JJ, this Court granted leave to appeal. PART II POSITION OF THE CROWN ON THE QUESTIONS IN ISSUE Questions on which Leave was Granted 42. The Crown s position with respect to the questions on which this Court granted the accused leave to appeal is as follows: A. Do appellate courts have jurisdiction to raise issues not raised by the parties? To ensure that justice is done, appellate courts have the discretion to raise any question of decisive legal error in order to determine if the ruling of the lower court under appeal was unjust. B. Did the Court of Appeal exercise that jurisdiction fairly in this case? The procedure followed met, even exceeded, what fairness required. C. Is it an error of law alone to permit cross-examination of a witness on the veracity of another witness or to rely upon such cross-examination in assessing credibility? Either permitting such cross-examination or relying upon it to assess credibility is an error of law alone for which the Crown has a right of appeal. D. Did these errors justify the order for a new trial? The Court of Appeal was justified in ordering a new trial based upon the trial judge s legal errors in handling the cross-examination of Detective Werth about the veracity of 60 Notice of application for leave to appeal dated 13 December 2012, AR at

20 15 Constable Drynan because those errors were pivotal in the trial judge s decision to exclude the evidence under s. 24(2) of the Charter. Additional Questions Raised by the Crown in Support of the Order for a New Trial 43. If this Court finds against the Crown s position on any of the above issues on which leave was granted, then this Court should consider the Crown s submissions, in support of the order for a new trial, on the following further issues, advanced by the respondent Crown in the court below but not considered by that court: E. Did the trial judge err in law in concluding that the police infringed the rights of the accused under ss. 10(a) and 10(b) of the Charter? Yes, the trial judge so erred. The brief 22-minute delay in complying with s. 10(a) and 10(b) of the Charter was fully justified by the exceptional circumstance of the need to preserve the integrity of an ongoing covert investigation of murderous gang violence. F. Did the trial judge err in law in excluding the evidence under s. 24(2) of the Charter? Yes, the trial judge so erred. There was no legal basis for an exclusion order given that the relatively minor Charter breaches did not lead even indirectly to the discovery of the impugned evidence. The breach was not at all egregious in that it was strongly mitigated by the extenuating circumstance that compliance was delayed to protect an ongoing wiretap investigation of very serious criminality. Impact upon the self-incrimination interest of the accused was only slight. The evidence was reliable and essential. There was no basis for concluding that any of the three relevant assessment factors weighed in favour of exclusion. PART III: ARGUMENT A. Do Appellate Courts have discretion to raise issues not raised by the Parties? 44. Yes: to ensure that justice is done, a court of appeal has discretion to raise any question of decisive legal error in order to determine if the ruling of the lower court under appeal was unjust. The exercise is simply an extension of a court of appeal s established ability to ask questions of counsel at the oral hearing of an appeal, questions which even capable counsel may not have expected and prepared for.

21 16 The Crown s Proposed Test to Govern Appellate Courts Exercise of Discretion to Raise a Decisive Legal Error 45. The discretion is properly engaged when the court of appeal on its own discerns a decisive legal error, which can be defined as: 1. an error of law, 2. apparent on the face of the record, 3. capable of determining the outcome of the appeal, 4. that logically fits within the grounds of appeal or response. 46. This is consistent with the role of an appellate court in our adversarial justice system, and simply allows the court of appeal to depart from the traditional adversarial system where truly necessary in order to correct an unjust verdict that shakes our confidence in the legal system. Importantly, the second consideration that the decisive legal error be apparent on the face of the record preserves fairness to the parties and is consistent with the manner in which this Court permits non-parties to intervene in appeals before this Court. 47. The Crown does not advocate that a court of appeal can or should inject brand new grounds of appeal into the case. In the vernacular, while the court of appeal may alter the bus route to the parties proposed destinations, it should not make the parties change buses. 48. As well, the Crown says that different considerations arise in the case of a selfrepresented litigant. This is because fairness may require the court of appeal to assist the selfrepresented litigant beyond what is necessary or appropriate in an appeal where the parties are represented by counsel, and Crown counsel may be required to assist the court of appeal in discharging that duty. The present appeal does not concern a self-represented litigant and the respondent s position and argument in this appeal does not address that situation. Whether and how an appellate court can raise new arguments in the case of a self-represented litigant need not be decided in this appeal, and should await future consideration. Justification of the Proposed Test 49. Canada s provincial and territorial courts of appeal are primarily engaged in error correction, in the sense of fixing legal error committed by the lower courts. However, often the appellate court must be mindful of the implications of its rulings on legal issues, and if the record discloses a potential decisive legal error with broader ramifications the court of appeal is entitled to raise it. As well, if the record shows that the ruling under appeal may be the unsound progeny

22 17 of a crucial error of law to which the parties have not adverted, the court of appeal is equally within its right to restore confidence in the justice system by advising the parties of the apparent critical legal error and asking them to address it, instead of turning its gaze away from the problem. 50. There is clear evidence that Canadian courts of appeal have occasionally moved beyond the pure adversarial system or party presentation paradigm and have raised issues of decisive legal error on their own motion in both criminal and civil appeals. This Court and the courts of appeal have done so in relation to questions such as: whether the appellate court had jurisdiction to hear the appeal; 61 whether the lower court had jurisdiction at trial; 62 whether impugned legislation offends different sections of the Charter than the parties allege; 63 the admissibility and use of prior consistent statements by child sexual abuse victims; 64 whether Crown counsel in a jury trial offended the Canada Evidence Act s. 4(5) rule against commenting on the failure of a spouse to testify; 65 whether the trial judge correctly instructed the jury on an important element of the offence; 66 whether an appeal should be dismissed as being without substance; 67 whether a sentence appeal should be allowed because respondent Crown counsel failed to move it along; 68 whether a proposed building development in dispute among the parties would comply with civic 61 R v Biniaris, 2000 SCC 15, [2000] SCR 381, at paras [Tab 5]; R v Biniaris, SCC docket 26570, letter to the parties dated September 24, 1999 [Tab 6]; Nova Scotia Board of Censors v McNeil, [1976] 2 SCR 265, 1975 CanLII 14 (SCC), [Tab 43]; Re Schiller and Board of Governors of the Scarborough General Hospital, [1975] OJ No 2438 (QL), 9 OR (2d) 648 (ON CA) [Tab 53]; Sewell v Sewell et al, 2010 NBCA 32, [2010] NBJ NO 159 (QL), at para 4 [Tab 56]; See also: Novic v Novic, [1983] 1 SCR 700, 1983 CanLII 148 [Tab 44]. 62 W.(V.) v S.(D.), [1996] 2 SCR 108, 1996 CanLII 192, per L Heureux-Dubé J at para 17 [Tab 69]; Wartime Housing Ltd v Madden, [1945] SCR 169 at 174, 1945 CanLII 36 [Tab 67]; R v Trites, 2011 NBCA 5 (CanLII) at para 11, 268 CCC (3d) 206 [Tab 64] (note: the appellant in whose favour this issue was determined was selfrepresented at the appeal); Park v Perrier, 2005 CanLII (ON SCDC) at para 25, 200 OAC 377 [Tab 46]; R v Cassidy, 49 CCC 93 (ON CA), [1927] OJ No 128 (QL) [Tab 11]; Parlee v College of Psychologists of New Brunswick, 2004 NBCA 42 (CanLII) at para 15, 270 NBR 2d 375 [Tab 47]; Thériault v. Canada (Attorney General), 2008 FCA 283, 382 NR 352 [Tab 63]. 63 R v Kapp, 2008 SCC 41, [2008] 2 SCR 483 [Tab 28], R v Kapp, SCC docket 31603, letter to the parties, 15 December 2006 [Tab 29]; M. v H., [1999] 2 SCR 3 at para 45, 1999 CanLII 686 [Tab 42]. The Crown acknowledges that this process involved the Chief Justice stating a constitutional question. 64 R v B.(D.C.), 91 CCC (3d) 357 (MB CA), 1994 CanLII 6412 [Tab 4]. 65 R v Wildman, 1981 CanLII 86 (CanLII), 60 CCC (2d) 289 (ON CA) at paras 19-25; revd [1984] 2 SCR 311, 1984 CanLII 82 [Tab 70]. 66 R v Kahnapace, 2010 BCCA 227 (CanLII), at para 4, 255 CCC (3d) 342 [Tab 27] as to whether the trial judge adequately instructed the jury on the link between intoxication and forseeability of death. 67 Dilworth et al v Bala (Town) et al, [1955] SCR 284 at 286, 1955 CanLII 6, [Tab 13]. 68 R v Pelletier, 1991 CanLII 3868 (QC CA) [Tab 49]; R v Fortin, 1991 CanLII 3864 (QC CA) [Tab 19].

23 18 development regulations; 69 whether a civic by-law would determine a slip and fall dispute; 70 whether there exists a statutory bar to a civil claim on the pleaded facts These examples simply illustrate that historically Canadian appellate courts have been prepared to raise issues logically related to the grounds presented by the parties, on their own motion, when necessary. The adversarial model, however, remains intact because Canadian appellate courts have generally respected the tactical choices made by the parties about which rulings to place in issue. One exception to this is that the court of appeal must always have the ability to raise a concern about jurisdiction its own, or that of the court below regardless of the position taken by the parties in the court below, or on appeal. The appellant admits this Consistent with this analysis is the established jurisprudence that an appellate court should not on its own motion engage the proviso in Code s. 686(1)(b)(iii), as this verdict-saving measure is for the Crown and only the Crown to invoke. 73 This rule is consistent with the Crown s proposed test because the proviso gives a court of appeal an entirely new basis upon which to dismiss an appeal from conviction, and thus falls outside of point 4 in the proposed test as set out in para 45 above. 53. In advocating slavish adherence to the party-presentation principle, the accused in this appeal relies heavily 74 on the United States Supreme Court majority opinion in Greenlaw, 75 per Ginsberg J, and ensuing academic commentary. 76 However there is much value in what Alito J, dissenting in Greenlaw, has to say about the virtue of a court of appeal s occasional ability to raise an issue on its own motion, or sua sponte as the Americans term it. He identifies the interest of the judiciary and the public in correcting grossly prejudicial errors of law that undermine confidence in our legal system, and says: We have repeatedly stressed the importance of that interest [citations omitted] and it has justified departures from our traditional adversary framework in other contexts. 69 Sun Life Assur. Co. of Canada v St. John s (City), 2006 NLCA 62 (CanLII), 50 Admin LR (4 th ) 137 at paras [Tab 58]. 70 MacLeod v Yong, 1999 BCCA 249, [2000] 1 WWR 170, per Prowse JA at paras 36-39, [Tab 34]. 71 The Dominion Canners Ltd v Costanza, [1923] SCR 46, 1922 CanLII 3 [Tab 61], applied in Horvath v. Thring, 2001 BCCA 551, 157 BCAC 152 [Tab 24]. 72 Appellant s Factum at paras 47, R v Pétel, [1994] 1 SCR 3, per Lamer CJ at 17, 1994 CanLII 133 [Tab 51]; R v McMaster, [1996] 1 SCR 740, per Lamer CJ at 37, [1996] SCJ No 31 [Tab 37]. 74 Appellant s Factum, para Greenlaw v US, 554 US 237 (2008), 171 L Ed 2d 399, per Alito J (dissenting) [Tab 22]. 76 Appellant s Factum, paras